• In the case of Tomlinson v Congleton BC 2004 1 AC 46 it was found that when considering what steps, if any an occupier of land should have taken to prevent an accident, the court in regards to the Occupiers Liability Ac5 1984 should take into account the cost of taking the steps, the social value of the activities  that the taking of the steps would prohibit and whether those of full capacity should be allowed to decide for themselves whether to take the relevant risk.

Facts of the Case

  • A lake that formed in a disused quarry in a country park was owned and occupied by the first defendant and managed by the second defendant and was well known to attract many visitors in hot weather.
  • Swimming in the lake was prohibited and the defendants displayed prominent notices reading “dangerous water: no swimming” and employed rangers with the duty of giving oral warnings against swimming and handing out safety leaflets.
  • The first defendant, aware that the notices were frequently ignored and had little effect in preventing visitors to the park, intent to plant vegetation round the shore to prevent people from going into the water but had not yet down so because of financial reasons.
  • The claimant, an 18-year-old went into the lake from a standing position in shallow water dived and struck his head on the sandy bottom, breaking his neck.
  • He claimed damages against the D, alleging that the accident had been caused by their breach of duty of care and they owed him under the Occupiers Liability Act 1984.
  • The judge on a preliminary issue as to liability held that this lake was no more dangerous than any other stretch of water and that the danger and risk of injury from fiving in it where it was shallow had been obvious.
  • He dismissed C’s claim.
  • The claimant was awarded reduced damages due to the Law Reform (Contributory Negligence) Act 1945.
  • The Council Appealed to the House of Lords.

Issues in Tomlinson v Congleton BC 2004 1 AC 46

  • Does an occupier need to offer protection from obvious dangers.
  • Was the danger created by the state of the premises or the conduct of the visitor/trespasser.

Held by House of Lords

  • The appeal was allowed.

Lord Hoffmann

  • The court (HL) said that the claim should be judged under the OLA 1984 because although the C was a visitor to the park, he became a trespasser when he ignored the signs and got into the water. It was also held that although the D may have been aware of the danger and aware of the presence of trespassers, the risk was not one which it was reasonable to expect protection. Furthermore, the injury sustained by the C was because of what he had done rather than the state of the premises and therefore no duty of care was owed.
  • “It is a terrible tragedy to su­er such dreadful injury in consequence of
    a relatively minor act of carelessness. It came nowhere near the stupidity of Luke Ratcli­, a student who climbed a fence at 2.30 a m on a December morning to take a running dive into the shallow end of a swimming pool (see Ratcli­ v McConnell [1999] 1 WLR 670) or John Donoghue, who dived into Folkestone Harbour from a slipway at midnight on 27 December after an evening in the pub: Donoghue v Folkestone Properties Ltd [2003] QB 1008. John Tomlinson’s mind must often recur to that hot day which irretrievably changed his life. He may feel, not unreasonably, that fate has dealt with him unfairly. And so in these proceedings he seeks financial compensation: for
    the loss of his earning capacity, for the expense of the care he will need for the loss of the ability to lead an ordinary life. But the law does not provide such compensation simply on the basis that the injury was disproportionately severe in relation to one’s own fault or even not one’s F own fault at all. Perhaps it should, but society might not be able to afford to compensate everyone on that principle, certainly at the level at which such compensation is now paid. The law provides compensation only when the injury was someone else’s fault. In order to succeed in his claim, that is what Mr Tomlinson has to prove. “ p.26 D-F